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South Carolina
JUDICIAL DEPARTMENT
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Advisory Opinions

ADVISORY COMMITTEE
ON STANDARDS OF JUDICIAL CONDUCT

OPINION NO. 10 - 2012

RE:¬†¬†¬†Propriety of a full-time magistrate trying criminal cases where the magistrate’s spouse is the head victim’s advocate for the Solicitor’s office.

FACTS

A full-time magistrate’s spouse is the head victim’s advocate for the Solicitor’s office in the same county where the magistrate serves.  The magistrate currently only handles civil cases, but may be given additional responsibilities.   The magistrate inquires into the propriety of handling criminal cases under these circumstances.

CONCLUSION

A full-time judge may not try criminal cases in which the Solicitor appears where the judge’s spouse is the head victim’s advocate for the Solicitor’s office in the same county.

OPINION

This Committee has previously addressed similar situations.  Most recently, in 4-2011, this Committee considered whether a full time magistrate could handle criminal cases where the magistrate’s spouse was the lead investigator for the solicitor’s office.  The Committee determined that the judge could not preside over such cases because the judge’s spouse could appear before the judge as a witness for the Solicitor, which would violate  Canon E.(1)(d)(iv) (Where a judge’s spouse or other person within the third degree of a relationship is likely to be a material witness, a judge should disqualify himself or herself).  In addition, Canons 1 and 2 of the Code of Judicial Conduct would be violated because that situation would create the appearance of impropriety and would cause the public to question the impartiality of the judiciary.

Here, the judge’s spouse, as head victim’s advocate, is likely to appear in criminal proceedings involving the Solicitor’s office.  Although the victim’s advocate may not appear as witness, the advocate would appear on behalf of the victim.  For the magistrate to preside over a case in which the Solicitor is involved would create the appearance of impropriety and would cause the public to question the impartiality of the judiciary, in violation of Canons 1 and 2.  Thus, the magistrate should not preside in criminal cases in which the Solicitor’s office is involved where the magistrate’s spouse is the head victim’s advocate in the same county.

 

s/_____________________________________
A. CAMDEN LEWIS, CHAIRMAN

s/_____________________________________
G. EDWARD WELMAKER

s/_____________________________________
JOCELYN B. CATE

July 12, 2012